HIO 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

LAW  LIBRARY 


"ISCOXSIN  LIBRARY  COMMISSTON 
5GISLATIVE  REFERENCE  DEPARTMENT 
3MPARATIVE  LEGISLATION  BULLETIN* 
No.  4     2-  / 


HE  INITIATIVE  AND  REFERENDUM; 
STATE  LEGISLATION 


C.  H.  TALBOT 


MADISON,  WISCONSIN 

JUNE,  1910 


INTRODUCTION 


The   LT.  lion    throughout    the   country  on    the 

subject   of  ''Initiative   and   IJelVrendiim"   has   br 
many  demands  from  the  people  of  thi- 
for   our   bulletins    on    this   subject.     This    bulletin    lias 
been  out  of  print  for  some  time  and  \ve  h,  ied  it 

d  and  brought  up  to 
tlie    incT'casinLT   demand.     Tin;   ivork    i 
.Mr.  0.   H.  Taibot, 

CJIAKI.KS  MCCARTHY 
Chief  Legislative  It  I )(/»/>•/ a 

\\'i  Library  '  :<>n 


THE  INITIATIVE  AND  REFERENDUM: 
STATE  LEGISLATION 


C.  H.  TALBOT 


COMPARATIVE  LEGISLATION  BULLETIN— No.  A-JuNE.  1910 

Prepared  with  the  co-operation  of  the  Political  Science 

Department  of  the  University  of  Wisconsin 


WISCONSIN  LIBRARY  COMMISSION 

LEGISLATIVE  REFERENCE  DEP'T 

MADISON  Wis 

1910 


CONTENTS 


Pare 

REFERENCES 3 

HISTORY 7 

Early  uses  of  direct  legislation 8 

Local  legislation 8 

The  state- wide  initiative  and  referendum 8 

The  right  to  instruct 9 

The  reference  of  acts  by  legislatures 9 

Special  constitutional  provisions 11 

Recent  constitutional  amendments 12 

Advisory  systems 13 

Validity  of  the  initiative  and  referendum 13 

LAWS  AND  JUDICIAL  DECISIONS 16 

Foreign  countries Iti 

United  States 19 

SUMMARY 35 

I.  Scope  of  Direct  State  Legislation 35 

Constitutional  law 35 

Statutory  law 30 

Public  opinion  laws ; 37 

Partypolicy  laws 37 

II.  Limitations  on  the  Resubmission  of  Measures 3," 

III.  Procedure  for  Initiative  Petitions 38 

Publicity 38 

Completion  of  petition 38 

Transmission  of  measures  to  legislature 3!» 

Provision  for  competing  bills 40 

Reference  of  initiative  measures  and  of  competing  bills  40 

IV.  Procedure  for  Reference  of  Measures 41 

Reference  by  petition 41 

Reference  by  legislative  action 41 

Duty  of  officials 41 

V.  Enactment  of  Referred  Measures 42 

Elections  for  submission  of  measures 42 

Veto  power 42 

When  operative 42 

VI.  Penalties....  43 


<r^ 

REFERENCES 


BORGEAUD,  CHARLES.  Practical  results  which  have  attended 
the  introduction  of  the  referendum  in  Switzerland.  Arena, 
May  1905,  vol.  33,  no.  186,  pp.  482-6. 

BOURNE,  JR.,  JONATHAN.  Popular  versus  delegated  govern- 
ment. Speech  delivered  in  the  United  States  Senate, 
May  5,  1910. 

A  resume' of  theeffectsof  ''government  by  the  people"  in  Oregon, 
by  the  senior  senator  of  the  state. 

BRTCE,  JAMES.  American  commonwealth.  3rd  ed.  New 
York,  1905.  2  vols. 

Gives  historical  and  critical  data:  ch.  39,  Direct  legislation  by 
the  people. 

CHAMBERLAIN,  GEORGE  E.  The  initiative  and  referendum 
and  the  direct  primary  law  in  Oregon.  Manumitter  Mag- 
azine, (Los  Angeles,  Cal.)July  1907,  vol.  1,  no.  2,  pp.  51-4. 
A  brief  discussion  of  these  measures  and  the  results  flowing  from 
their  adoption  in  Oregon,  by  the  Governor  (now  junior  United 
States  senator)  of  the  state. 

COMMONS,  JOHN  R.  Proportional  representation,  with  chap- 
ters on  the  initiative,  the  referendum,  and  primarv  elec- 
tions. 2nd  ed.  New  York,  1907. 

Discusses  concisely  the  effects  and  importance  of  the  initiative 
and  referendum  as  reserved  powers  in  the  hands  of  the  people : 
app.  3,  Direct  legislation— the  people's  veto,  pp.  291-310. 

COUTTS,  W.  A.     Is  a  provision  for  the  initiative  and  referen- 
dum   inconsistent    with  the  Constitution  cf  the   United 
States?     Michigan  Law  Review,  Feb.  1908,  vol.  6,  no.  4, 
pp.  304-317. 
A  discussion  of  the  constitutional  Question  raised. 

CURTI,  THEODORE.  The  initiative  and  referendum  in  Switzer- 
land. Twentieth  Century,  Oct.  1909,  vol.  1,  no.  1,  pp. 
18-26. 

A  condensed  account  of  the  history  and  effects  of  the  initiative 
and  referendum  in  Switzerland. 

LLOYD,  HENRY  DEMAREST.  A  sovereign  people,  a  study  of 
Swiss  democracy.  Edited  by  John  A.  Hobson,  New  York, 
1907. 

A  detailed  and  critical  account  of  the  effects  of  direct  legislation 
in  Switzerland. 


4  THE  INITIATIVE  AND  REFERENDUM 

MACKENZIE,  WILLIAM  D.  The  direct-vote  system,  Arena, 
Feb.  1908,  vol.  39,  no.  219,  pp.  131-41. 

Reviews  the  progress  and  effects  of  the  Initiative  and  referendum 
in  the  United  States. 

OBERHOLTZKK,  ELLIS  P.  The  referendum  in  America.  New 
York,  1900. 

An  historical  and  critical  discussion:  ch.  4,  The  referendum  on 
entire  constitutions;  ch.  15,  The  initiative  in  America. 

PARSONS,  FRANK.  The  city  for  the  people.  Philadelphia, 
1901. 

An  historical  and  critical  discussion  of  direct  legislation  in  ch.  2 
(pp.  255-386),  and  pp.  605-629. 

PEASE,    LUTE.     The     initiative    and    referendum — Oregon'* 
"Big  Stick."     Pacific  Monthly,  May  1907,  vol.  17,  no.  5, 
pp.  563-75. 
A  review  of  the  history  and  results  of  these  measures  in  Oregon. 

PEOPLE'S  PROGRESSIVE  GOVERNMENT  LEAGUE  OF  OREGON. 
Introductory  letter  containing  proposed  initiative  meas- 
ures for  1910,  with  explanations  of  same.  Portland,  Ore., 
Aug.  1909. 

Explains  the  desirability  of  presenting  initiative  measures  to  the 
legislature  for  consideration  and  the  framing  of  competing  meas- 
ures (p.  6);  and  proposes  an  amendment  making  this  change 
(pp.  11-12). 

Also  recommends  the  requirement  of  a  vote  of  three-fourths  of 
all  the  members  elected  to  each  house,  on  a  separate  roll-call,  for 
the  passage  of  "emergency"  measures  (pp.  6, 12, 13). 

POST,  Louis  F.  The  initiative  and  referendum.  (In  National 
Municipal  League,  Proceedings  of,  1906,  p.  363-81). 

A  brief  survey  of  the  development  of  the  Initiative  and  referen- 
dum in  the  United  States. 

SMITH,  J.  ALLEN.  The  spirit  of  American  government.  New 
York,  1907. 

Ch.  13  contains  a  discussion  of  direct  primaries,  the  initiative  and 
referendum,  and  the  recall. 

SULLIVAN,   J.  W.     Direct  legislation  through   the  initiative 

and  referendum      New  York,  1893. 

An  excellent  presentation  of  direct  legislation. 
UNITED  STATES  SENATE.     Direct  legislation;  papers  by  Elt- 

weed  Pomeroy  and  others.     55th  Cong.  2nd  sess.  Senate 

doc.  no.  340.     (In  serial  no.  3615.) 
An  extensive  collection  of  arguments  and  digest  of  literature  on 

the  subject. 
UNITED  STATES,  HOUSE  OK  REPRESENTATIVES.     Referendum 

and  initiative,  by  Arthur  S.  Hardy,  57th  Cong.  2nd  sess. 

House   of   Representatives,   doc.   no.   1,   pp.  981-94.     (In 

serial  number  4440.) 
A  detailed  report  on  direct  legislation  in  Switzerland,  made  to 

the  department  of  state  by  the  American  minister  to  Switzerland 

in  June.  1902. 


THE  INITIATIVE  AND  REFERENDUM 


UNITED  STATES,  SENATE.  The  initiative  in  Switzerland,  by 
Leo  J.  FrankenthaL  61st  Cong.,  1st  session,  Senate  doc. 
no.  126. 

A  report  made  to  the  department  of  state  by  tin  American  vice- 
consul  at  Berne,  Switzerland,  May.  1908. 

U'REN,  WILLIAM  S.  Six  years  of  the  initiative  and  referen- 
dum in  Oregon.  City  Club  Bulletin.  Chicago,  May  26, 
1909,  vol.  2,  no.  38,  pp.  465-78. 

Gives  a  history  of  the  results  gained  by  the  adoption  and  use  of 
the  initiative  and  referendum  in  Oregon. 

VINCENT,  JOHN  M.  Government  in  Switzerland.  New  York, 
1900. 

Discusses  the  operation  of  the  initiative  and  referendum  in 
Switzerland.  See  c.  3,  pp.  52-74;  c.  5,  pp.  84-90;  c.  14,  pp.  188-99;  and 
p.  362. 

WILSON'S  DEBATERS'  HANDBOOK  SERIES.  Selected  Articles 
on  the  initiative  and  referendum;  compiled  by  Edith  M. 
Phelps.  Minneapolis,  1909. 

Contains  a  good  bibliography  on  the  subject,  and  reprints  of  a 
number  of  articles  on  both  sides  of  the  Question. 


HISTORY 


The  "Initiative"  and  the  ''Referendum"  are  new 
terms  for  old  institutions. 

The1  initiative1  may  be  defined  as  the  power  the  peo- 
ple reserve  to  themselves  to  propose  laws  and  amend- 
ments to  the  constitution  and  to  enact  or  reject  the 
same  at  the  polls,  independent  of  the  legislature. 

The  referendum1  may  similarly  be  defined  as  the 
power  the  people  reserve  to  themselves  to  approve  or 
reject  at  the  polls  any  act  passed  by  the  legislative  as- 
sembly. 

The  forms  of  the  initiative  and  the  referendum  may 
be  described  as  obligatory  or  as  optional  in  their  opera- 
tion upon  the  electorate,  and  as  advisory  or  mandatory 
in  their  operation  upon  the  legislature. 

The  referendum  is  obligatory  when  a  law  must  be 
submitted  to  the  people,  and  optional  when  a  law  is 
submitted  only  upon  petition  by  a  certain  number  of 
voters. 

Under   the   mandatory   initiative    and    referendum, 


Compare  the  definitions  in  the  constitutions  of  Me.,  Const.  (Amend- 
1908)  art.  4.  part  1,  sec.  1:  Mo..  Const.  (Amend.  1908)  art.  4,  sec.  1;  Mont- 
Const.  (Amend.  1906)  art.  5,  sec.  1:  Okla.  Const.  1907,  art.  5.  sec.  1:  Ore- 
Const,  (Amend.  1902)  art.  4,  sec.  1;  S.  D.  Const.  (Amend.  1S98)  art.  3,  sec- 
1 :  and  in  the  proposed  amendments  for  Ark.  Acts,  1909,  p.  1238;  and  Nev. 
Statutes,  1808-9,  p.  347. 


8  THE  INITIATIVE  AND  REFERENDUM 

the  direct  vote  of  the  people  is  conclusive  in  the  en- 
actment of  legislation.  Under  the  advisory  system, 
the  voters  can  instruct  their  representatives  by  direct 
ballot.  To  make  the  system  effective  it  is  necessary 
to  pledge  representatives  to  obey  the  will  of  their  con- 
stituents when  expressed  by  referendum  vote. 

Public  opinion  laws  merely  secure  the  expression 
of  public  opinion  on  questions  of  public  policy. 

Early  Uses  of  Direct  Legislation 

Local  legislation 

The  Swiss  Landsgemeinde  illustrates  an  early  ustf 
of  direct  legislation  in  local  affairs.  The  old  New 
England  town  meeting,  where  measures  were  proposed 
and  adopted  or  rejected  at  the  will  of  the  electors,  af- 
fords another  typical  example. 

The  state-wide  initiative  and  referendum 

The  state-wide  referendum  for  the  adoption  of  state 
constitutions  is  a  familiar  institution  in  the1  United 
States. 

The  first  constitution  submitted  to  a  direct  vote  of  the  peo- 
ple was  that  proposed  by  the  General  Court  of  Massachuetts- 
in  1778. 

At  the  present  time  Delaware  is  the  only  state  in  the  Union 
in  which  a  referendum  is  not  required  for  the  adoption  of 
constitutional  amendments. 

The  state-wide  initiative  for  constitutional  amend- 
ments was  first  provided  for  in  the  Georgia  Constitu- 
tion of  1777,  in  the  following  language: — 

"Art.  LXIII.  No  alteration  shall  be  made  in  this  constitu- 
tion, without  petitions  from  a  majority  of  the  counties,  and 
the  petition  from  each  county  to  be  signed  by  a  majority  of 
voters  in  each  county  within  this  state;  at  which  time  the 


THE  INITIATIVE  AND  REFERENDUM  9 

assembly  shall  order  a  convention  to  be  called  for  that  pur- 
pose, specifying  the  alterations  to  be  made,  according  to  the 
petitions  preferred  to  the  assembly  by  the  majority  of  the 
counties  as  aforesaid.  Thorpe,  American  Charters,  Constitu- 
tions and  Organic  Laws,  vol.  2,  p.  785. 

For  other  instances  of  direct  legislation  in  our  early 
history  see1  Connecticut  (Fundamental  \  Orders  of 
Connecticut,  1638-39),  Thorpe,  (American  charters, 
constitutions,  etc.,  vol.  1,  p.  522)  ;  and  Rhode  Island 
(Charter  of  Rhode  Island  and  Providence  Planta- 
tions), vol.  6,  pp.  3214-16. 

The  right  to  instruct 

The  right  to  instruct  representatives  was  commonly 
exercised  in  the  early  constitutional  history  of  this 
country. 

The  constitution  of  Massachusetts,  adopted  in  1780,  ex- 
pressly asserts  the  right  of  the  people  "to  give  instructions  to 
their  representatives."  In  1783  the  instructions  from  Boston 
ran:  "It  is  our  unalienable  right  to  communicate  to  you  our 
sentiments;  and  when  we  shall  judge  it  necessary  or  con- 
venient, to  give  you  instructions  on  any  special  matter,  and 
we  expect  you  will  hold  yourselves  at  all  times  bound  to  at- 
tend to  and  to  observe  them." 

For  other  instances  of  the  express  reservation  of  the  right 
to  instruct,  see  the  Const,  of  Pa.,  1776,  art.  XVI.  (Thorpe, 
American  charters,  constitutious,  etc.,  vol.  5,  p.  3084);  the 
Const,  of  N.  C.,  1776,  art.  XVIII.  (id.,  vol.  5,  p.  2788);  and 
the  Const,  of  N.  H.,  1784,  art,  XXXII.  (id.,  vol.  4,  p.  2457). 

The  reference  of  acts  by  legislatures 

After  the  adoption  of  written  constitutions,  a  num- 
ber of  judicial  decisions  were  handed  down  which  held 
that  the  reference  of  an  act  to  a  vote  of  the  people  of 
a  state  was  a  delegation  of  legislative  power  and  there- 
fore unconstitutional. 

For  early  decisions  putting  forth  the  above  doctrine,  see 
the  following  cases  directly  in  point:  Rice  v.  Foster,  4  Har- 


10  THE  INITIATIVE  AND  REFERENDUM 

ring.  (Del.),  479  (1847);  Thorne  v.  Cramer,  15  Barb.  112  (1851); 
Bradley  v.  Baxter,  15  Barb.  122  (1853);  and  Barto  v.  Himrod, 
8  N.  Y.  483  (1853);  and  Santo  v.  State,  2  la.  105  (1855).  See  also 
dicta  in  the  following  cases:  Parker  v.  Commonwealth,  6 
Pa.  St.  507  (1847);  State  v.  Copeland,  3  R.  I.  33(1854);  Stein 
v.  Mayor,  24  Ala.  591  (1854);  State  v.  Swisher,  17  Tex.  441 
(1856);  State  ex  rel.  Dome  v.  Wilco.v,  45  Mo.  458  (1870):  and 
State  ex  rel.  Sandford  v.  Court  of  Common  Pleas,  36  N.  J. 
Law,  72. (1872). 

For  the  contrary  doctrine,  and  sustaining  of  such  acts,  see 
Johnson  v.  Rich,  9  Barb.  680(1851):  State  v.  Parker,  26  Vt.  :<57 
(1854),  and  Smith  v.  .Tanesville,  26  Wis.  291  (1870),  cases  directly 
in  point.  Also  dicta  in  Wales  v.  Belcher,  20  Mass.  508  (1827); 
People  v.  Reynolds,  5  Gilman  (111.)  1  (1848);  L.  &  N.  R.  R.  Co. 
v.  County  Court,  33  Tenn.  637  (1854);  State  v.  Noyes,  30  X.  H. 
279  (1855);  Bull  v.  Read,  54  Va.  (13  Grat.)  78  (1855);  Manly  v. 
Raleigh,  57  N.  C.  370  (1859);  Alcorn  v.  Hamer,  38  Miss. '652 
(1860).  and  Locke's  Appeal,  72  Pa.  St.  491  (1873). 

The  following  are  leading  cases  on  the  two  sides : 

Holding  state-wide  reference  of  an  act  to  the  people  uncon- 
stitutional: Rice  v.  Foster,  Thorne  v.  Cramer,  Bradley  v. 
Baxter,  Barto  v.  Himrod,  and  Santo  v.  State,  all  cited  above; 
State  v.  Hayes,  61  N.  H.  264  (1881);  and  opinions  of  the  Jus- 
tices, 160  Mass.  586  (1894).  Also  indicating  such  reference  to 
be  unconstitutional  in  dicta:  Parker  v.  Commonwealth,  State 
v.  Copeland,  State  ex  rel.  Dome  v.  Wilcox,  and  State  ex  rel. 
Sandford  v.  Court  of  Common  Pleas,  all  cited  above;  and 
Wright  v.  Cunningham,  115  Tenn.  445  (1905). 

Holding  state-wide  reference  of  an  act  to  be  constitutional 
and  valid:  Johnson  v.  Rich,  State  v.  Parker,  Smith  v.  Janes- 
ville,  all  cited  above,  and  State  ex  rel.  Van  Alstino  v.  Frear 
(Wis)  125  N.  W.  961  (1910).  Also  indicating  such  reference 
to  be  constitutional  in  dicta:  Wales  v.  Belcher,  People  v. 
Reynolds,  L.  &  N.  R.  R.  Co.  v.  County  Court,  Bull  v.  Read, 
Manly. v.  Raleigh,  Alcorn  v.  Hamer,  and  Locke's  Appeal,  all 
cited' above;  Fell  v.  State,  42  Md.  71  (1875);  Clarke  v.  Rogers, 
81  Ky.  43  (1883);  and  Rutter  v.  Sullivan,  25  W.  Va.  427  (1885). 

The  present  status  of  the  question  is  as  follows: 

Holding  it  unconstitutional:    Del.,  la.,  Mass.,  N.  H.,  N.  Y. 

Holding  it  constitutional:     Vt.,  Wis. 

Not  adjudicated,  but  with  dicta  indicating  such  reference  to  be 
unconstitutional:  Md.,  N.  J.,  Tenn.,  Tex.,  Utah,  Wash. 

Not  adjudicated,  but  with  dicta  indicating  it  constitutional  and 
valid:  Ala.,  Ark.,  Cal.,  Ga.,  111.,  Kan.,  Minn.,  Miss.,  N.  C., 
Pa.,  R.  I.,  S.  C.,  Va.,  W.  Va. 


THE  INITIATIVE  AND  REFERENDUM  H 

Reference  prohibited  by  express  constitutional  provision:  Ind., 
Ohio,  and  Ky.  (except  in  certain  specified  cases). 

Reference  expressly  permitttd  by  conttitutional  prjvision:  Me., 
Mich.,  Mo.,  Mont,,  Okla.,  Ore.  ' 

Special  constitutional  provisions 

The  adoption  of  constitutional  provisions  which  ex* 
pressly  require  the  reference  to  a  vote  of  the  people  of 
legislative  acts  on  specified  questions,  is  the  next  step 
in  the  history  of  direct  legislation  in  the  United  States. 

Provisions  for  the  obligatory  state-wide  referendum 
on  special  questions  are  found  quite  generally  in  our 
state  constitutions.  They  cover  a  variety  of  questions 
including  suffrage,  state  boundaries  and  annexations 
of  territory,  the  location  of  the  seat  of  government  and 
of  state  institutions,  apportionment,  the  incurring  of 
state  indebtedness,  the  loaning  of  the  state  credit, 
banks  and  banking,  state  aid  to  railways,  taxation,  ap- 
propriations, sale  of  school  lands,  and  provisions  for 
education. 

For  typical  illustrations  of  the  obligatory  referendum  com- 
pare the  following  constitutional  provisions: 

Suffrage.  Colo.  Const.  1876,  art.  7,  sec.  2;  N.  D.  Const.  1889, 
art.  5,  sec.  122;  S.  D.  Const.  1889,  art.  7,  sec.  2,  Wis.,  Const. 
1848.  art.  3,  sec.  1. 

State  boundaries  and  annexations  of  territory.  W.  Va.  Const. 
1872,  art.  6,  sec.  11. 

Location  of  seat  of  government.  Colo.  Const.  1876,  art.  8.  sec. 
2;  Kan.  Const  1859,  art.  15,  sec.  8;  Mont.  Const.  1889,  art.  10, 
sec.  2;  Ore.  Const.  1857,  art,  14,  sec.  1;  Pa.  Const.  1873,  art.  3, 
sec.  28;  S.  D.  Const.  1889,  art,  20;  Wash.  Const.  1889,  art.  14, 
sec.  1. 

Location  of  state  institutions.  Tex.  Const.  1876,  art.  7,  sees. 
10  and  14;  Wyo.  Const,  1889,  art.  7,  sec.  23. 

Apportionment.     W.  Va.  Const'.  1872,  art.  6,  sec.  50. 

Public  Credit.  Cal.  Const.  1879,  art.  16;  Colo.  Const.  1876, 
art.  11,  sec.  5;  Idaho  Const.  1889,  art.  8,  sec.  1;  111.  Const,  1870, 
art.  4,  sec.  18;  la.  Const.  1857,  art.  7,  sec.  5;  Kan.  Const.  1859, 


12  THE  INITIATIVE  AND  REFERENDUM 

art.  11,  sec.  6;  Ky.  Const.  1891,  sec.  50;  Mo.  Const.  1875,  art. 
4,  sec.  44;  Mont.  Const.  1889,  art.  13,  sec.  2;  N.  J.  Const.  1844, 
art.  4,  sec.  6;  N.  Y.  Const,  art.  7,  sec.  4;  R.  I.  Const.  1844,  art. 
4,  sec.  13;  S.  C.  Const.  1895,  art.  10,  sec.  11;  Wash.  Const. 
1889,  art.  8,  sec.  3;  Wyo.  Const.  1889,  art.  16,  sec.  2. 

Banks  and  banking.  111.  Const.  1870,  art.  11,  sec.  5;  la. 
Const.  1857,  art.  8,  sec.  5;  Kan.  Const.  1859,  art.  13,  sec.  8; 
Mo.  Const.  1875,  art.  12,  sec.  26;  and  Wis.  Const.  1848,  art.  11, 
sec.  5.  Wisconsin  provided  for  a  double  referendum,  first,  to 
determine  whether  a  law  should  be  submitted,  and  then  by  a 
second  referendum,  whether  the  law  submitted  should  be 
adopted.  (Changed  by  the  amendment  of  1902.) 

State  aid  to  railways.  Minn.  Const.  (Amend.  1860)  art.  9, 
sec.  2. 

Taxation.  Colo.  Const.  1876,  art.  10,  sec.  11;  Idaho  Const. 
1889,  art.  7,  sec.  9;  111.  Const.  1870,  art.  4,  sec.  33;  Mont. 
Const.  1889,  art.  12,  sec.  9;  Utah  Const.  1895,  art.  13,  sec.  7. 

Appropriations  for  public  buildings.     Colo.   Const.   1876,  art. 
11,  sees.  3-5;  111.  Const.  1870,  art.  4,  sec.  33. 
^Sale  of  school  landt.     Kan.  Const.  1859,  art.  6,  sec.  5. 

Provisions  for  education.  Tex.  Const.  1876,  art.  7,  sees.  10 
and  14. 

Recent  constitutional  amendments 

Within  recent  years  a  number  of  states  have  adopted 
constitutional  provisions  establishing  the  initiative  and 
referendum  for  general  state  legislation.  These  amend- 
ments provide  for  the  optional  initiative  and  referen- 
dum, whereas  the  older  constitutional  provisions  for 
the  referendum  on  special  state  questions  are  obliga- 
tory. 

For  recent  constitutional  provisions  for  direct  state  legisla- 
tion, see  S.  D.  Const.  (Amend.  1898)  art.  3,  sec.  1;  Utah, 
Const.  (Amend.  1900)  art.  6,  sees.  1  and  22;  Ore.  Const. 
(Amend.  1902)  art.  4,  sec.  1;  Nev.  Const.  (Amend.  1904)  art. 
19,  sees.  1  and  2,  (provides  referendum  only);  Mont.  Const. 
(Amend.  1906)  art.  5,  sec.  1;  Okla.  Const.  1907,  art,  5.  sees.  1- 
4,  6-8,  and  art.  24,  sec.  3;  Me.  Const.  (Amend.  1908)  art.  4, 
part  1,  sec.  1;  id.,  part  3,  sec.  1,  and  sees.  16-22;  Mo.  Const. 
(Amend.  1908)  art.  4,  sec.  1. 

For  proposed  constitutional  amendments,  see  Ark.,  Acts, 
1909,  p.  1238;  Nev.,  Statutes,  1908-9,  p.  347. 


THE  INITIATIVE  AND  REFERENDUM  13 

Advisory  systems 

The  difficulty  of  securing  constitutional  amendments 
for  the  initiative  and  referendum  has  led  to  the  devel- 
opment of  other  methods  for  securing  at  least  partial 
systems  of  direct  state  legislation. 

Public  opinion  laws.     A  public  opinion  system  was 

enacted  in  Illinois  in  1901.     The  electors  of  that  state 

» 

have  voted  upon  a  number  of  legislative  questions ; 
but  as  the  candidates  for  the  legislature  were  not 
pledged  to  obey  the  wishes  of  their  constituents,  these 
expressions  of  opinion  have  not  been  very  effective  in 
securing  the  legislation  desired. 

See  111.  Rev.  Stats.,  1905,  c.  46,  sees.  428,  429,  p.  967  (111. 
Laws,  1901,  p.  198). 

Th-e  advisory  system  within  parties.     The  advisory 
system  within  the  parties  at  primary  elections  was 
adopted  in  Texas  in  1905. 
See  Tex.  Laws,  1905,  First  called  session,  c.  11,  sec.  140. 

Validity  of  the  initiative  and  referendum. 

The  validity  of  state  constitutional  amendments  re- 
serving to  the  people  the  right  of  the  initiative  and 
referendum  is  firmly  established. 

The  clause  in  the  Federal  Constitution  which  has 
been  used  as  the  basis  for  attack  upon  such  provisions 
is  art.  4,  sec.  4:  "The  United  States  shall  guarantee 
to  every  state  in  this  union  a  republican  form  of  gov- 
ernment .  .  ." 

In  this  connection  the  courts  have  held, 

1.  (a)  That  the  jurisdiction  over,  and  enforce- 
ment of,  the  above  guaranty  belongs  to  Congress. 


14  THE  INITIATIVE  AND  REFERENDUM 

"When  the  senators  and  representatives  of  a  state  are  ad- 
mitted into  the  councils  of  the  union,  the  authority  of  ilu- 
government  under  which  they  are  appointed,  as  well  as  its 
republican  character,  is  recognized  by  the  proper  constitu- 
tional authority,  and  its  decision  is  binding  on  every  other 
department  of  the  government,  and  could  not  be  questioned 
in  a  judicial  tribunal."  Luther  v.  Borden,  7  How.  (48  U.  S.) 
1,  42  (1849).  Re-affirmed  in  Texas  v.  White,  7  Wall.  (74 
U.  S.)  700  (1869),  and  Taylor  v.  Beckham,  178  U.  S.  548 
(1900).  And 

(b)  It  is  a  matter  of  public  record  that  senators 
and  representatives  from  S.  D..  Utah,  Ore.,  Mont., 
Okla.,  Me.,  and  Mo.,  (all  states  having  the  initiative 
and  referendum)  have  all  been,  and  are,  "admitted 
into  the  councils  of  the  union." 

2.  (a)   'The  state  constitutions  in  force  at  the  time 
of  the  adoption  of  the  federal  constitution  afford  un- 
mistakeable  evidence  of  what  was  republican  in  form, 
within  the  meaning  of  that  term  as  employed  in  the 
constitution,"  and  were  guaranteed  as  republican  in 
form  by  that  instrument.     Minor  v.   Happersett,  21 
Wall.  (88  U.  S.)  162  (1875). 

(b)  The  initiative  powers  upon  constitutional 
amendments  was  expressly  provided  in  the  constitu- 
tion of  Georgia  of  1777  (art.  LXIII).  (which  was  in 
force  as  the  organic  law  of  that  state  at  the  time  of 
adoption  of  the  federal  constitution.) 

3.  "The  initiative  and  referendum  amendment  does 
not  abolish  or  destroy  the  republican  form  of  govern- 
ment, or  substitute  another  in  its  place.     .     .     .     The 
people  have  simply  reserved  to  themselves   a  larger 
share  of  legislative  power."     Kadderly  v.   Portland, 
44  Ore.  118  (1903),  re-affirmed  in  Oregon  v.  Pacific 
States   Telephone   and   Telegraph   Co.,   53   Ore.    162 


THE  INITIATIVE  AND  REFERENDUM  15 

(1909).  and  followed  in  Ex  parte  Wagner.  21  Okla. 
33  (1908).  Also,  see  State  ex  rel  Lavin.  et  al.  v. 
Bacon,  et  al.,  14  S.  D.  394  (1901),  upholding  the  S.  D. 
amendment. 

"For  additional  decisions  on  direct  legislation,  see  Hopkins 
v.  imluth,  81  Minn.  189  (1900);  in  re  Pfahler,  150  Cal.  71 
(1906):  and  Eckerson  v.  Des  Moines,  137  la.  452  (1908). 

For  further  references  upon  this  matter,  see  The  Federal- 
ist, No.  21  (by  Hamilton)  and  No.  43  (by  Madison);  James 
Wilson,  Works,  vol.  1,  p.  544  ("A  Republic  or  Democracy, 
where  the  people  at  large  retain  the  supreme  power,  and  act 
either  collectively  or  by  representation.")  Montesquieu, 
Spirit  of  Laws,  vol.  1,  Book  3,  chapters  1-4;  Story  on  the 
Constitution,  4th  ed.,  vol.  2,  c.  41,  pp.  567-574;  and  Cooley, 
Const.  Lim.,  7th  ed.,  c.  2,  pp.  42-45.  Compare  also  Lincoln's 
"Government  of  the  people,  by  the  people,  for  the  people." 
(Gettysburg  Address.) 

The  federal  constitution  of  Switzerland,  c.  1,  art.  6,  guar- 
antees to  every  canton  (state)  a  republican  form  of  govern- 
ment, "representative  or  democratic." 


16  THE  INITIATIVE  AND  REFERENDUM 


LAWS  AND  JUDICIAL  DEC1SIONS- 


Foreign  countries 

Switzerland?  Fed.  Const.  1874,  art.  89.  Federal 
laws,  enactments,  and  resolutions  are  to  be  passed  only 
by  the  agreement  of  the  two  councils.  Federal  laws 
must  be  submitted  for  acceptance  or  rejection  by  the 
people  if  the1  demand  is  made  by  30,000  voters  or  by 
8  cantons.  The  same  principle  applies  to  federal 
resolutions  which  have  a  general  application,  and  which 
are  not  of  an  urgent  nature. 

art.  120.  Whenever  either  council  of  the  Federal 
Assembly  passes  a  resolution  for  a  complete  revision 
of  the  federal  constitution  and  the  other  council  does 
not  agree,  or  when  50,000  voters  demand  a  complete 
revision,  the  question  whether  the  federal  constitu- 
tion ought  to  be  amended  is,  in  either  case,  to  be1  sub- 


8  The  present  study  concerns  itself  only  with  the  initiative  and  the 
referendum  for  general  state  legislation.  Constitutional  provisions  for 
the  obligatory  referendum  on  special  state  questions,  and  state  legisla- 
tion relating  to  the  initiative  and  referendum  in  local  affairs,  are  not 
considered. 

*  See  United  States,  57th  Cong..  2nd  sess..  House  of  Rep.  doc.  no.  1  tin 
serial  no.  4440).  p.  981-94,  for  an  excellent  account  of  the  Swiss  referen- 
dum and  initiative,  by  Arthur  S.  Hardy,  formerly  I',  s.  minister  to 
Switzerland.  See.  also,  the  recent  report  to  the  Department  of  stale  by 
Leo  J.  Frankenthal.  American  vice-consul,  Berne.  Switzerland.  May, 
1908,  on  "The  Initiative  in  Switzerland,"  (found  in  United  States,  61st 
Cong.,  1st  sess..  Senate  doc.  no.  126.) 


THE  INITIATIVE  AND  REFERENDUM  17 

mitted  to  a  referendum  vote,  and  if  the  majority  of  the 
citizens  who  vote  pronounce  in  the  affirmative1,  there 
must  be  a  new  election  of  both  councils  for  the  pur- 
pose of  undertaking  the  revision. 

Fed.  Law,  June  17,  1874.  This  law  provides  the 
procedure  for  referendums. 

Fed.  Const.  (Amend.  1891)  art.  121.  Partial  re- 
vision may  take  place  by  popular  initiative  or  in  the 
manner  provided  for  the  passage  of  federal  laws.  The 
initiative  may  be  invoked  by  the  petition  of  50,000 
voters  asking  for  the  enactment,  the  abolition,  or  the 
amendment  of  certain  articles  of  the1  federal  constitu- 
tion. When  several  subjects  are  proposed  for  amend- 
ment or  for  enactment  in  the  federal  constitution  by 
means  of  the  initiative,  each  must  form  the  subject 
of  a  special  petition.  Petitions  may  be  presented  ia 
general  terms  or  as  a  completed  proposal  of  amend- 
ment. When  a  petition  is  presented  in  general  terms 
and  the  Federal  Assembly  is  in  agreement  therewith, 
it  is  the  duty  of  that  body  to  draw  up  a  project  of 
partial  revision  in  accordance  with  the  sense  of  the 
petitioners,  and  to  submit  it  to  the  people  and  the 
cantons  for  acceptance  or  rejection.  If  the  Federal 
Assembly  is  not  in  agreement  with  the  petition,  the 
question  of  revision  must  be  submitted  to  the  vote  of 
the  people,  and  if  the  majority  of  those  voting  express 
themselves  in  the  affirmative,  the  Federal  Assembly 
must  proceed  with  the  revision  in  conformity  with  the 
popular  decision. 

When  a  petition  is  presented  in  the  form  of  a  com- 
pleted project  of  amendment,  and  the  Federal  As- 


18  THE  INITIATIVE  AND  REFERENDUM 

sembly  is  in  agreement  therewith,  the  project  must  be 
referred  to  the  people  and  the  cantons  for  acceptance 
or  rejection.  In  case  the  Federal  Assembly  is  not  in 
agreement  with  it,  that  body  may  prepare  a  project  of 
its  own,  or  recommend  the  rejection  of  the  proposed 
amendment,  and  it  may  submit  its  own  counter-pro- 
ject or  its  re'commendations  for  rejection  at  the  same 
time  that  the  initiative  petition  is  submitted  to  the 
vote1  of  the  people  and  the  cantons. 

art.  123.  The  amended  federal  constitution,  or  the 
revised  portion  thereof,  is  in  force  when  it  has  been 
adopted  by  a  majority  of  the  citizens  voting  thereon, 
and  by  a  majority  of  the  cantons.  In  making  up  a 
majority  of  the  cantons  the  vote  of  a  half-canton  is 
counted  as  half  a  vote. 

Fed.  Law,  June  27,  1892.  This  law  provides  the 
mode  of  procedure  for  the  initiative'. 

The  Cantons.  All  the  cantons  have  the  initiative  an&  referen- 
dum upon  constitutional  amendments:  and  all  except  Fri- 
bourg,  upon  statutes. 

Great  Britain.  The  question  of  introducing  the  re- 
ferendum to  settle  disputes  between  the  two  houses  has 
been  discussed  in  the  British  Parliament. 

See  the  Parliamentary  Debates  for  June  24,  1907,  p.  911, 
924-5. 

The  question  was  somewhat  widely  debated  in  the  recent 
budgetary  conpaign  (1909-10). 

Commonwealth  of  Australia.  Const.  1900.  This 
constitution  was  ratified  by  referendum  vote  taken  in 
the  separate  colonies  in  Australia  from  1899  to  1900. 
Under  chapter  8,  section  128,  of  the  constitution,  pro- 
posed amendments  must  be  submitted  to  a  referendum 
vote.  A  double  majority  is  required  for  ratification 


THE  INITIATIVE  AND  REFERENDUM  ]9 

namely,  a  majority  of  all  the  electors  voting  and  also 
a  majority  vote  in  more  than  half  of  the  states. 

Norway.  An  interesting  use  of  the  referendum  was 
made  by  the  people  of  Norway  in  their  separation  from 
Sweden.  A  Resolve  of  the  Storthing  on  July  28,  1905, 
provided  for  a  referendum  vote  of  the  electors  of  the 
whole  country  to  decide  the  question  of  the  dissolution 
of  the  union.  The  referendum  took  place  on  August 
13,  1905,  and  resulted  in  a  practically  unanimous  vote 
for  the  dissolution. 
United  States 

Arkansas.  ( Proposed  Const.  Amend.)  Acts  of 
Ark.,  1909,  pp.  1238-1240.  The  initiative  and  refer- 
endum apply  to  both  statutes  and  constitutional  amend- 
ments. Emergency  acts  are  excepted  from  the  applr 
cation  of  the  referendum. 

Initiative  petitions  must  be  signed  by  8  per  cent  of 
the  legal  voters,  must  include  the  full  text  of  the  meas- 
ure proposed,  and  be  filed  with  the  secretary  of  state 
not  less  than  four  months  before  the  election  at  which 
they  are  to  be  voted  upon. 

Referendum  petitions  must  be  signed  by  at  least 
5  per  cent  of  the  voters,  and  must  be  filed  not  more 
than  ninety  days  after  the  final  adjournment  of  the 
session  of  the  legislative  assembly  which  passed  the 
bill  on  which  the  referendum  is  demanded.  The  leg- 
islative assembly  may  order  a  referendum  on  any  act. 
The  veto  power  of  the  governor  does  not  extend  to 
measures  referred  to  the  people. 

Any  measure  referred  to  the  people  shall  take  ef- 
fect and  become  a  law  when  it  is  approved  by  a  ma- 
jority of  the  votes  cast  thereon. 


20  THE  INITIATIVE  AND  REFERENDUM 

Illinois.  Rev.  Stats.,  1905,  c.  46,  Sees.  428-9, 
p.  967.  (Laws,  1901,  p.  198.)  Under  this  law  the 
submission  of  any  question  for  an  expression  of  public 
opinion  may  be  secured  on  a  written  petition  signed  by 
10%  of  the  registered  voters  of  the  state.  The  peti- 
tion must  be  filed  with  the  proper  election  officers  not 
less  than  sixty  days  before  the  election  at  which  the 
question  is  to  be  considered.  Not  more  than  three 
propositions  may  be  submitted  at  the  same  election 
and  they  are  to  be  submitted  in  the  order  of  filing. 

Maine.  Const.  (Amend.  1908)  art.  4,  part  1,  sets. 
1  and  16-22.  Resolves,  1907,  c.  121,  pp.  1476-81. 
This  amendment  applies  to  statutory  but  not  to  con- 
stitutional law.  Certain  specific  exemptions  are  also 
made  for  statutory  law. 

Emergency  bills  are  not  subject  to  the  referendum. 
Such  bills  may  include  measures  immediately  neces- 
sary for  the  preservation  of  the  public  peace,  health, 
or  safety,  but  may  not  include  (1)  an  infringement  of 
the  right  of  home  rule  for  municipalities :  (2)  a  fran- 
chise or  license  to  a  corporation  or  an  individual,  ex- 
tending longer  than  one  year:  or  (3)  provision  for  the 
sale,  or  purchase,  or  renting  for  more  than  five  yt'ars 
of  real  estate.  The  emergency  and  also  the  facts 
creating  the  same  must  be  set  forth  in  the  preamble  of 
the  act.  A  two-thirds  vote  of  all  the  members  elected 
to  each  house  is  necessary  to  pass  an  emergency  meas- 
ure. 

Initiative  bills  may  propose  any  measure,  including 
bills  to  amend  or  repeal  emergency  legislation,  but  not 
to  amend  the  state1  constitution.  The  petition  mu.;t 


THE  INITIATIVE  AND  REFERENDUM  21 

set  forth  the  full  text  of  the  measure  proposed  and 
be  signed  by  not  less  than  12,000  electors,  and  be  filed 
with  the  secretary  of  state1  or  presented  to  either 
branch  of  the  legislature  at  least  30  days  before  the 
close  of  its  session.  Proposed  measures  must  be  sub- 
mitted to  the  legislature,  and  unless  they  are  enacted 
without  change,  they  must  be  submitted  to  the  electors 
together  with  any  amended  form,  substitute,  or  rec- 
ommendation of  the  legislature,  in  such  a  manner 
that  the  people  can  choose  between  the  competing 
measures,  or  reject  both.  When  there1  are  competing 
bills  and  neither  receives  a  majority  of  the  votes  given 
for  and  against  both,  the  one  receiving  the'  most  votes 
is  to  be  resubmitted  by  itself  at  the  next  general  elec- 
tion, to  be  held  not  less  than  sixty  days  after  the  first 
vote  thereon ;  but  no  measure  is  to  be  resubmitted  un- 
less it  has  received  more  than  one-third  of  the1  votes 
given  for  and  against  both.  An  initiative  measure 
enacted  by  the  legislature  without  change  is  not  to 
be  referred  unless  a  popular  vote  is  demanded  by  a 
referendum  petition.  The  veto  power  of  the  gover- 
nor does  not  extend  to  any  measure  approved  by  vote 
of  the1  people,  and  if  he  vetoes  any  measure  initiated 
by  the  people  and  passed  by  the  legislature  without 
change  and  his  veto  is  sustained  by  the  legislature,  the 
measure  is  to  be  referred  to  the  people  at  the  next 
general  election. 

The  legislature  may  enact  measures  expressly  con- 
ditioned upon  the  people's  ratification  by  referendum 
vote. 

Petitions  for  a  reference  of  any  act  or  any  part  or 


22  THE  INITIATIVE  AXD  REFERENDUM 

parts  thereof,  passed  by  the  legislature  must  be  signed 
by  not  less  than  10,000  electors,  and  be  filed  within 
ninety  days  after  the  recess  of  the  legislature.  The 
governor  is  required  to  give  notice  of  the  suspension 
of  acts  through  referendum  petitions  and  make  public 
proclamation  of  the  time  when  the  referred  measure 
is  to  be  voted  upon.  Referred  measures  do  not  take 
effect  until  thirty  days  after  the  governor  has  an- 
nounced their  ratification  by  a  majority  of  the  electors 
voting  thereon.  If  so  requested  in  any  initiative  or 
referendum  petition,  a  special  election  shall  be  held 
upon  the  act  to  be  referendumed  or  the  act  initiated 
but  not  enacted  without  change  by  the'  legislature. 

Missouri.  Const.  (Amend.  1908)  Art.  4,  Sec.  1. 
Laws  1907,  p.  452-3.  The  initiative  and  referendum 
apply  to  both  statutory  law  and  to  constitutional 
amendments.  Initiative  petitions  require  not  more 
than  8%  of  the  legal  voters  in  each  of  at  least  two- 
thirds  of  the  congressional  districts  in  the  state. 
Every  petition  must  include  the  full  text  of  the  meas- 
ure proposed,  and  must  be  filed  not  less  than  four 
months  before  the  election  at  which  it  is  to  be  voted 
upon. 

The  referendum  may  be  ordered  upon  a  petition 
signed  by  5%  of  the  legal  voters  in  each  of  at  least 
two-thirds  of  the  congressional  districts,  or  by  the 
legislative  assembly.  Emergency  measures  are  ex- 
empt from  the  referendum.  Laws  making  appropria- 
tions for  the  current  expenses  of  the  state  govern- 
ment, for  the  state  institutions,  and  for  the  public 
schools  are  also  exempt.  Referendum  petition?  must 


THE  INITIATIVE  AND  REFERENDUM  2?> 

be  filed  not  more  than  ninety  days  after  the  final  ad- 
journment of  the  legislative  session.  The  veto  power 
of  the  governor  does  not  extend  to  measures  referred 
to  the  people.  A  referred  measure  becomes  a  law 
when  approved  by  a  majority  of  the  votes  cast  there- 
on. 

Laws,  1909,  pp.  554-6.  This  act  establishes  the 
procedure  to  facilitate  the  operation  of  the  initiative 
and  referendum  provisions  of  the  constitution.  It 
specifically  provides  for  the  form  of  initiative  and 
referendum  petitions ;  the  verification  of  signatures ; 
judicial  proceedings;  the  duties  of  officials  relating  to 
petitions ;  the  manner  of  voting  on  measures ;  what 
measure  shall  be  paramount  in  case  of  conflict ;  the 
canvass  and  returns  of  votes  on  measures,  and  for 
proclamations  on  paramount  measures ;  and  the  pen- 
alties for  violation  of  this  act. 

Montana.  Const.  (Amend.  1906)  art.  5,  sec.  1. 
Direct  legislation  is  established  for  statutory,  but  not 
for  constitutional  law.  Certain  specific  exemptions 
are  also  made  for  statutory  law.  The  referendum  may 
not  be  invoked  for  emergency  measures. 

Initiative  petitions  require  S>%  of  the  legal  voters 
from  two-fifths  of  the  whole  .number  of  counties  of 
the  state.  They  must  include  the  full  text  of  the 
measure  proposed,  and  must  be  filed  not  less  than  four 
months  before  the  election'  at  which  they  are1  to  be 
voted  upon. 

Referendum  petitions  require  5%  of  the  voters  from 
each  of  two-fifths  of  the  counties  and  they  must  be 
filed  not  later  than  six  months  after  the  final  adjourn- 


24  THE  INITIATIVE  AND  REFERENDUM 

ment  of  the  legislative  session.  The  legislative  as- 
sembly may  also  refer  any  act. 

Any  measure  referred  to  the  people  is  to  remain  ii 
full  force  and  effect  unless  the  referendum  petition  is 
signed  by  15%  of  the  legal  voters  of  a  majority  of  the 
whole  number  of  the  counties  of  the'  state,  in  which 
case,  the  law  remains  inoperative  until  it  is  passed 
upon  at  an  election  and  the  result  has  been  determined 
as  provided  by  law.  The  veto  power  of  the  governor 
does  not  extend  to  measures  referred  to  the  people. 

Rev.  Codes,  1907,  vol.  1,  part  III,  title  I,  c.  II,  art. 
X.,  sees.  106-115,  (Laws,  1907,  c.  62).  This  law  es- 
tablishes the  procedure  for  carrying  the  direct  legis- 
lation provisions  of  the  constitution  into  effect.  It 
definitely  sets  forth  the  requirements  as  to  the  form 
of  petitions ;  the  verification  of  signatures ;  the  duties 
of  officials  in  submitting  petitions ;  the  publication  and 
distribution  of  the  title  and  text  of  measures  and  of 
arguments ;  the  manner  of  conducting  the  elections 
and  of  canvassing  the  vote ;  and  the  proclamation  of 
the  governor  declaring  the'  enactment  of  the  approved 
measures. 

Provision  is  made  for  the  official  distribution  of  the 
text  of  measures  to  all  the  electors  in  the  state.  In 
addition,  arguments  for  or  against  any  proposed  meas- 
ures may  be  supplied  at  the  expense  of  the  parties 
interested ;  and  such  arguments  when  printed  in  pam- 
phlet form  of  specified  size  and  style,  will  be  mailed 
by  the  state  bound  in  with  the  official  copy  of  the 
measure  to  each  voter. 

Parties  filing  initiative  petitions  may  supply  argu- 


THE  INITIATIVE  AND  REFERENDUM  25 

ments  for  and  opposing  parties  may  supply  arguments 
against  the  measures  proposed.  In  the  case1  of  refer- 
endums,  any  person  may  supply  arguments  for  or 
against  the  referred  measures ;  but  the  secretary  of 
state  is  not  obliged  to  receive  any  pamphlets  for  dis- 
tribution unless  a  sufficient  number  is  furnished  to 
supply  one  to  every  legal  voter  in  the  state. 

Xcrada.  Const.  (Amend.,  1904)  art.  19,  sees.  1 
and  2.  A  referendum  may  be  ordered  on  petition  of 
10%  of  the  voters.  When  a  majority  of  the  electors 
voting  at  a  state  election  by  their  votes  signify  ap- 
proval of  a  law  or  resolution,  such  law  or  resolution 
stands  as  the  law  of  the  state,  and  cannot  be  over- 
ruled, annulled,  set  aside,  suspended,  or  in  any  way 
made  inoperative  except  by  the  direct  vote  of  the 
people.  When  such  majority  so  signifies  disapproval 
the  measure  is  void  and  of -no  effect. 

Statutes,  1908-9,  c.  188.  This  law  provides  the 
procedure  for  submitting  acts  of  the  legislature  to  a 
vote  of  the  people  in  accordance  with  the  referendum 
provisions  of  the  constitution.  Petitions  must  be  filed 
with  the  secretary  of  state  not  less  than  four  months 
before  the  general  election.  The  act  provides  for  the 
verification  of  signatures ;  the  duty  of  officials  in  sub- 
mitting the  question ;  and  the  counting  and  canvassing 
of  the  votes  cast  tht'reon. 

(Proposed  Const.  Amend.)  Statutes  of  Nev.  1908- 
9,  Resolution  Xo.  XVI,  part  347-349.  The  initiative 
and  referendum  power  is  reserved  to  the  people1,  and 
applies  to  laws  and  constitutional  amendments. 

Initiative  petitions  require  10%  of  the  qualified  elec 


26  THE  INITIATIVE  AND  REFERENDUM 

tors  and  must  be  filed  with  the  secretary  of  state  not 
less  than  thirty  days  before  any  regular  session  of  the 
legislature.  The  secretary  of  state  transmits  the  same 
to  the  legislature  as  soon  as  it  convenes  and  organizes. 
Such  measures  take  precedence  of  all  measures  of  the 
legislature  except  appropriation  bills,  and  must  be 
enacted  or  rejected  without  change  or  amendment 
within  forty  days.  If  it  is  enacted  by  the  legislature 
and  approved  by  the  governor  it  becomes  a  law,  but 
is  subject  to  referendum  petition. 

If  it  is  rejected  by  the  legislature,  or  if  no  action 
is  taken  thereon  within  forty  days,  the  secretary  of 
state  must  submit  the  same-  to  the  voters  for  approval 
or  rejection  at  the  next  general  election;  and  if  a  ma- 
jority of  the  votes  casJ/thereon  approve  of  it,  it  be- 
comes a  law  and  takes  effect  from  the  date  of  the 
official  declaration  of  the  vote.  An  initiative  measure 
so  approved  by  the  voters  cannot  be  annulled,  set 
aside  or  appealed  by  the  legislature  within  three  years. 

If  the  legislature  rejects  an  initiative  measure,  it 
may,  with  the  approval  of  the  governor,  propose  a 
different  measure  on  the  same  subject,  in  which  event 
both  measures  must  be  submitted  to  the  voters  at  the 
next  general  election.  If  the  conflicting  measures  sub- 
mitted shall  both  be  approved  by  a  majority  of  the 
votes  severally  cast  for  and  against  each  of  them  the1 
measure  receiving  the  highest  number  of  affirmative 
votes  thereupon  becomes  a  law  as  to  all  conflicting 
provisions. 

This  amendment  is  self-executing  but  legislation 
may  be  enacted  especially  to  facilitate  its  operation. 


THE  INITIATIVE  AND  REFERENDUM  27 

Oklahoma.  Const.  1907,  art.  5,  sees.  1-4,  6-8,  and 
art.  24,  sec.  3.  The  initiative  and  referendum  apply 
to  constitutional  and  to  statutory  law.  Emergency 
measures  are  exempt  from  the  referendum  provisions. 

Legislative  measures  may  be  proposed  by  8%,  and 
amendments  to  the  constitution  by  15 %  of  the  legal 
voters.  Initiative  petitions  must  contain  the  full  text 
of  the  measure  proposed. 

A  referendum  may  be  ordered  by  5%  of  the  legal 
voters.  Petitions  for  referred  measures  must  be  filet! 
not  more  than  ninety  days  after  the  final  adjournment 
of  the  legislature.  Petitions  and  orders  for  the  in- 
itiative and  referendum  must  be  filed  with  the  secre- 
tary of  state  and  be  addressed  to  the  governor  who 
must  submit  them  to  the  people. 

Initiative  measures  require  a  majority  of  the  votes 
cast  at  the  election,  while  only  a  majority  of  the  votes 
cast  on  a  referred  measure  are  necessary  to  give  it  ef- 
fect. The  referendum  may  be  demanded  by  the  peo- 
ple1 against  one  or  more  items,  sections,  or  parts  of 
any  act  of  the  legislature.  The  legislature  may  refer 
any  act  to  a  vote  of  the  people.  The  veto  power  of 
the  governor  doe's  not  extend  to  measures  voted  on 
by  the  people. 

The  explicit  statement  is  also  inserted  that  "the 
reservation  of  the  powers  of  the  initiative1  and  refer- 
endum shall  not  deprive  the  legislature  of  the  right 
to  repeal  any  law,  or  propose  or  pass  any  measure 
which  may  be1  consistent  with  the  constitution  of  the 
state  and  the  constitution  of  the  United  States." 


28  THE  INITIATIVE  AND  REFERENDUM 

In  the  light  of  the  experience  of  older  states  that  have 
adopted  direct  legislation  in  state  affairs,  this  statement 
seems  superfluous.  The  provisions  of  the  state  constitutions 
which  reserve  direct  legislative  power  to  the  people  do  not 
contemplate  the  restriction  of  initiative  power  in  the  legisla- 
ture; the  power  constitutionally  delegated  to  representatives 
to  initiate  measures  or  to  repeal  laws  still  remains.  Th« 
people  merely  reserve  the  right  to  prdpose  measures  and  to 
enact  or  reject  either  initiative  or  legislative  measures  inde- 
pendent of  the  legislative  assembly.  For  a  discussion  of  this 
point,  see  Kadderly  v.  Portland,  44  Or.  118  (1903). 

Gen.  Stats.,  1908,  c.  36,  (Laws,  1907-8,  c.  44).  This 
act  carries  into  effect  the  initiative  and  referendum 
powers  of  the  above  constitutional  provisions.  It  pre- 
scribes the  forms  of  initiative  and  referendum  peti- 
tions, and  provides  for  the  verification  of  signatures. 
Provisions  are  made  for  judicial  proceedings;  the 
wording  of  the  ballot ;  title  of  the  measure ;  proclama- 
tion by  the  governor  giving  the  substance  of  the  meas- 
ure and  the  date  of  the  referendum  vote  thereon ;  the 
publication  and  distribution  to  all  the  voters  of  the 
state  of  a  pamphlet  containing  the  text  of  the  measures 
to  be  voted  upon  and  arguments  for  and  against  the 
same1 ;  resubmission  for  a  measure  receiving  the  great- 
est number  of  votes,  if  it  has  received  more  than 
one-third  of  the  votes  cast  for  and  against  both 
bills,  in  the  case  of  competing  measures  both  of 
which  were  defeated ;  the  canvass  and  return  of 
votes  and  proclamation  by  the  governor  in  the  case 
of  the  adoption  of  conflicting  measures ;  and  penalties 
for  violation  of  this  act. 

The  procedure  prescribed  is  not  mandatory,  but  if 
substantially  followed  is  sufficient. 

The  publication  and  distribution  of  the  text  of  pro- 


THE  INITIATIVE  AND  REFERENDUM  29 

posed  measures  and  of  arguments  favoring  or  oppos- 
ing them  is  as  follows :  Arguments  shall  be  prepared 
for  and  against  each  measure  to  be  submitted  to  a 
vote  of  the  people  of  the  state,  the  length  of  arguments 
not  to  exceed  2,000  words  for  each  side,  of  which  one- 
fourth  may  be1  in  answer  to  opponents'  arguments. 
For  one  side  the  arguments  shall  be  prepared  by  a 
joint  committee  of  the  house  and  senate,  and  for  the 
other  by  a  committee  representing  the  petitioners. 
When  the  legislature  submits  a  competing  bill  the 
argument  against  it  is  prepared  by  the  committee 
that  prepared  the  affirmative  for  the  opposing  bill. 
Where  the  legislature  submits  any  other  question  the 
argument  for  the  negative  is  prepared  by  a  commit- 
tee representing  the  members  in  the  legislature  who 
voted  against  the  substance  of  the.  measure.  The 
first  part  of  each  argument  must  be  completed  not 
later  than  two  weeks  after  the  governor's  announce- 
ment of  the  submission  of  the  measure.  Twenty-five 
copies  must  be  filed  with  the  secretary  of  state1  who 
must  at  once  deliver  twenty-three  copies  to  the  chair- 
man of  the  opposing  committee.  Each  committee 
must  file  its  answer  within  two  weeks.  In  no  case, 
however,  shall  the  time  be  so  great  as  to  bring  the 
completion  of  the  argument  nearer  than  100  days  be- 
fore any  regular  election,  or  40  days  before  any  spe- 
cial election,  at  which  the  measure  is  to  be  voted  upon. 
Where  the  time  for  preparing  the  arguments  is  less 
than  four  weeks,  it  is  divided  equally  between  the 
two  parties. 

Before  the  primary  election  held  prior  to  the  general 


•30  THE  INITIATIVE  AND  REFERENDUM 

election  the  secretary  of  state  must  forward  to  the 
county  clerk  pamphlets  containing  copies  of  the  meas- 
ures, arguments,  official  ballot,  (and  a  table  of  con- 
tents) in  sufficient  numbers  to  supply  all  the  voters 
in  all  the  counties  of  the  state  and  an  additional  num- 
ber equal  to  ten  per  cent  of  such  number  of  voters. 
At  the  time  of  furnishing  the  primary  election  sup- 
plies, each  county  clerk  must  furnish  each  election 
inspector  his  quota  for  each  precinct  wherein  a  pri- 
mary is  to  be  held,  and  it  is  made  the  duty  of  the  in- 
spector to  furnish  every  voter  a  copy  of  the  pamphlet 
on  the  day  of  the  primary  flection.  All  copies  re- 
maining, must  be  preserved  by  the  inspector  and  be 
by  him  distributed  to  electors  who  are  unsupplied 
with  same.  Provisions  is  also  made  for  the  distri- 
bution of  pamphlets  before  a  special  referendum  elec- 
tion. 

Oregon.  Const.  (Amend.,  1902)  art.  4,  sec.  1. 
The  initiative  and  referendum  apply  to  constitutional 
and  to  statutory  law,  but  the  referendum  may  not  be 
invoked  upon  emergency  measures. 

Every  initiative  petition  must  contain  the  full  text 
of  the  measure  proposed,  must  be  signed  by  at  least 
8%  of  the  legal  voters,  and  must  be  filed  not  less  than 
four  months  before  the  election  at  which  it  is  to  be 
voted  upon. 

Referendum  petitions  must  be  signed  by  at  least 
5%  of  the  voters,  and  must  be  filed  not  more  than 
ninety  days  after  the  final  adjournment  of  the  legisla- 
tive assembly.  The  legislative  assembly  may  order  a 
referendum  on  any  act.  The  veto  power  of  the 


THE  INITIATIVE  AND  REFERENDUM  31 

governor  does  not  extend  to  measures  referred  to  the 
people. 

Any  measure  referred  to  the  people  becomes  a  law 
when  it  is  approved  by  a  majority  of  the  votes  cast 
thereon. 

"The  initiative  and  referendum  amendment  does  not  abol- 
ish or  destroy  the  republican  form  of  government  or  substi- 
tute another  in  its  place.  The  representative  character  of 
the  government  still  remains.  The  people  have  simply  re- 
served to  themselves  a  larger  share  of  legislative  power.  .  .  . 

"Under  this  amendment,  it  is  true,  the  people  may  exercise 
a  legislative  power,  and  may,  in  effect,  veto  bills  passed  and 
approved  by  the  legislature  and  the  governor;  but  the  legis- 
lative and  executive  departments  are  not  destroyed.  .  .  . 
Laws  proposed  and  enacted  by  the  people  under  the  initiative 
laws  of  the  amendment  are  subject  to  the  same  constitutional 
limitations  as  other  statutes,  and  may  be  amended  or  re- 
pealed by  the  legislature  at  will."  Kadderly  v.  Portland, 
44  Or.  118(1903). 

Laws,  1907,  c.  226.  This  act  facilitates  the  opera- 
tion of  the  initiative  and  referendum  powers  reserved 
by  the  people,  regulates  elections  thereunder,  and  pro- 
vides penalties  for  violations.  The  law  definitely  pre- 
scribes the  form  of  initiative  and  referendum  peti- 
tions ;  the  manner  of  vertifying  signatures ;  the  duties 
of  officials  in  submitting  measures ;  the  method  of 
canvassing  and  making  returns ;  and  the  declaration 
of  the  enactment  of  approved  measures. 

The1  following  definite  provision  is  made  for  the 
publication  and  distribution  of  the  text  of  proposed 
measures  and  for  arguments  advocating  or  opposing 
the  questions  submitted : — Before  any  election  at  which 
any  proposed  law  or  amendment  to  the  constitution  is 
to  be  submitted  to  the  people,  the  secretary  of  state  is 
required  to  have  printed  in  pamphlet  form  the  text  of 


;!l>  THE  INITIATIVE  AND  REFERENDUM 

each  measure  to  be  submitted,  together  with  the  title 
as  it  will  appear  on  the  official  ballot.  Parties  filing 
initiative  petitions  have  the  right  to  file  any  arguments 
advocating  such  measures.  In  the  case  of  referen- 
dums,  any  person  has  the  right  to  file  arguments  for 
or  against  the  referred  measures.  The  parties  offer- 
ing arguments  for  distribution  must  pay  all  the  ex- 
pense for  paper  and  printing  to  supply  one  copy  with 
every  copy  of  the  measure  to  be  printed  by  the  state. 
The  cost  of  printing,  binding,  and  distributing  the 
measures  proposed,  and  of  binding  and  distributing 
the  arguments,  are  to  be  paid  by  the  state  as  a  part  of 
the  state  printing.  Within  a  specified  time  before  any 
election  at  which  measures  are  to  be  voted  upon,  the 
secretary  of  state  is  required  to  transmit  copies  of  each 
measure  together  with  the  arguments  submitted,  to 
the  voters  within  the  state. 

See  Stevens  v.  Benson,  50  Or.  269  (1907),  and  Palmer  v. 
Benson,  50  Or.  277  (1907). 

South  Dakota.  Const.  (Amend.,  1898)  art.  3,  sec. 
1.  Under  this  amendment  the  people  expressly  re- 
serve the  right  to  propose  measures  which  the  legisla- 
ture is  required  to  enact  and  to  submit  to  a  vote  of 
the  electors.  They  also  serve  the  right  to  require 
a  referendum  on  any  law  which  the  legislature  may 
have  enacted,  except  laws  necessary  for  the  immediate 
preservation  of  the  public  peace,  health,  or  safety,  and 
laws  for  the  support  of  the  state  government  and  its 
existing  public  institutions. 

Not  more  than  5%  of  the  qualified  voters  are  re- 
quired to  invoke  either  the  initiative  or  the  referen- 
dum. 


THE  INITIATIVE  AND  REFERENDUM  33 

Comp.  Laws,  1908,  vol.  1,  Pol.  Code,  sees.  21-28. 
Initiative  petitions  must  contain  the  substance  of  the 
law  desired.  Referendum  petitions  must  describe1  the 
law  to  be  submitted  by  setting  forth  the  title  together 
with  the  date  of  passage  and  approval;  such  petitions 
must  be  filed  within  ninety  days  after  the  adjourn- 
ment of  the  legislature.  Initiative  or  referendum 
measures  approved  by  a  majority  of  the  votes  cast 
thereon  become  law  and  are  to  be  in  force  immediately 
after  the  result  has  been  officially  determined.  The 
veto  power  of  the  executive1  shall  not  be  exercised  as 
to  measures  referred  to  a  vote  of  the  people.  Peti- 
tions shall  be  liberally  construed  so  that  the  real  in- 
tention of  the  petitioners  may  not  be  defeated  by 
mere  technicality.  (Laws,  1899,  c.  93,  as  amended  by 
c.  166,  Laws,  1907,  and  c.  43,  Laws,  1909). 

The  legislature  having  declared  that  an  act  is  an  emergency 
measure,  such  determination  is  final,  and  is  conclusive  upon 
the  courts.  See  State  ex  rel.  Lavin  et  al.  v.  Bacon  et  al.,  14 
S.  D.  394  (1901). 

Texas.  Laws,  1905,  First  called  session,  c.  11, 
sec.  140.  Under  the  primary  election  law,  10%  of 
the  voters  in  any  political  party  may  propose  policies 
and  secure  a  direct  party  vote  thereon.  Petitions  are 
to  be1  filed  with  the  chairman  of  the  county  or  pre- 
cinct executive  committee  at  least  five  days  before  the 
tickets  are  to  be  printed  and  the  chairman  may  re- 
quire a  sworn  statement  that  the  names  of  the  ap- 
plicants are  genuine. 

The  number  of  signatures  required  for  a  petition 
is  to  be  determined  by  the  votes  cast  for  the  party 
nominee  for  governor  at  the  preceding  election.  It 


)U  THE  INITIATIVE  AND  REFERENDUM 

is  the  duty  of ,  the  chairman  to  submit  any  proposition 
for  which  a  petition  is  filed,  and  the  delegates  selected 
at  that  time  are  to  be  considered  instructed  for  which- 
ever proposition  a  majority  of  the  votes  is  cast. 

Utah.  Const.  (Amend.,  1900),  art.  6,  sees.  1  and 
22.  This  amendment  provides  for  direct  legislation, 
but  the  amendment  is  not  self-executing,  and  five  suc- 
cessive legislatures  have  refused  to  put  it  in  force. 


THE  INITIATIVE  AND  REFERENDUM  35 


SUMMARY 


The  leading  provisions  relating  to  direct  state  legis- 
lation may  be  summarized  under  six  main  headings,  as 
follows: — (I)  the  scope  of  direct  legislation,  (II) 
limitations  on  the  re-submission  of  measures,  (III) 
procedure  for  initiative  petitions,  (IV)  procedure  for 
reference  of  measures.  (V)  enactment  of  referred 
measures,  and  (VI)  penalties. 

I.    SCOPE   OF  DIRECT   LEGISLATION 

In  the  United  States  direct  legislation  has  been  ap- 
plied to  constitutional  and  to  statutory  law ;  it  has  also 
been  employed  to  obtain  expressions  of  public  opinion 
on  state  affairs,  and  to  secure  instructions  as  to  party 
policy  within  the  political  parties. 

Constitutional  law 

The  constitutional  amendments  for  direct  legislation 
in  state  affairs  apply  generally  to  constitutional  law. 

Exceptions.  Some  of  the  states  exempt  constitu- 
tional amendments  from  the  operation  of  the  initia- 
tive. 

See  Mont.  Const.  (Amend.  1906),  art.  5,  sec.  l;-Me.  (Amend. 
1908)  Resolves,  1907,  c.  121,  pp.  1476-1481. 


36  THE  INITIATIVE  AXD  REFERENDUM 

Statutory  law 

As  regards  statutory  law,  some  of  the  amendments 
provide  for  specific  exceptions  to  the  use  of  direct 
legislation,  and  nearly  all  provide  for  emergency 
measures. 

Exceptions.  The  specific  exceptions  generally  re- 
late to  appropriations  for  the  current  expenses  of  the 
state  government,  for  the  maintenance  of  the  state  in- 
stitutions, and  for  the  support  of  the  public  schools. 
Compare  the  provisions  of  Me.,  Mo.,  Mont.,  and  S.  D. 

Emergency  measures.  Laws  necessary  for  the  im- 
mediate preservation  of  the  public  peace,  health,  or 
safety,  are  generally  exempt  from  the  operation  of 
the  referendum. 

See  Ark.  (Proposed  Const.  Amend.),  acts,  1909,  pp.  1238-40: 
Me.  (Amend.  1908),  Resolves,  1907,  c.  121;  Mo.  (Amend.  1908), 
Laws,  1907,  p.  452-3;  Mont.  Const.  (Amend.  1906)  art.  5,  sec. 
1;  Okla.  Const.  1907,  art.  5,  sec.  2;  Ore.  Const.  (Amend.  1902) 
art.  4,  sec.  1;  S.  D.  Const.  (Amend.  1898)  art.  3.  sec.  1. 

A  safeguard  against  the  undue  use  of  emergency 
measures  is  provided  in  some  cases  by  requiring  the 
declaration  of  the  emergency  and  a  two>-thirds  major- 
ity of  all  the  members  elected  to  each  house,  for  the 
passage  of  such  bills. 

See  the  provisions  of  the  Me.  Amendment. 

A  further  safeguard  against  the  abuse  of  the  emer- 
gency clause  by  the  legislature  is  secured  by  an  enum- 
eration of  laws  which  may  not  be  enacted  as  emer- 
gency measures. 

Thus,  the  proposed  amendment  for  Maine  provides  that  an 
emergency  bill  shall  not  include  (1)  the  infringement  of  the 
right  of  home  rule  for  municipalities;  (2)  a  franchise  or  a 
license  to  a  corporation  or  an  individual  to  extend  longer  than 


THE  INITIATIVE  AND  REFERENDUM  37 

one  year;  or  (3)  provision  for  the  sale  or  purchase  or  renting 
for  more  than  five  years  of  real  estate. 

The  courts  have  uniformly  held  that  the  question  as 
to  whether  a  law  is  necessary  for  the  immediate  pres- 
ervation of  the  public  peace,  health,  or  safety,  is  for 
the  legislature  to  decide  and  is  not  subject  to  judicial 
review. 

See  State  v.  Bacon,  14  S.  D.  394  (1901);  and  Kadderly  v.. 
Portland,  44  Ore.  118,  146-51  (1903). 

Public  opinion  laws 

Public  opinion  system.  Under  public  opinion  laws 
pressure  may  be  brought  to  bear  upon  legislators  in 
the  enactment  of  law. 

See  111.  Rev.  Stats.,  1905,  c.  46,  sees.  428-9,  p.  967  (Laws, 
1901,  p.  198). 

Advisory  system.  The  advisory  system  goes  farther- 
in  the  same  direction  and  instructs  representatives  as 
to  legislative  action. 

Party  policy  laws 

Advisory  system  -within  the  parties.  The  use  of  the 
advisory  system  within  the  parties  at  primary  elections 
enables  the  voters  in  any  political  party  to  propose 
policies  and  secure  a  direct  party  vote  thereon. 

See  Tex.  Laws,  1905,  First  called  sessions,  c.  11,  sec.  140. 

II.    LIMITATIONS    ON    THE    RESUBMISSION    OF    MEASURES 

The  possible  abuse  of  direct  legislation  through  a 
frequent  resubmission  of  defeated  propositions,  is  pro- 
vided against  in  one  instance. 

In  Okla.  Const.  1907,  art.  5,  sec.  6,  any  measure  rejected  by 
the  people  cannot  be  again  proposed  by  the  initiative  within- 
three  years  by  less  than  25%  of  the  legal  voters. 


38  THE  INITIATIVE  AND  REFERENDUM 

3 
111.    PROCEDURE    FOR    INITIATIVE    PETITIONS 

The  procedure  for  initiative  measures  varies  in  the 
several  states.  Differences  exist  in  the  requirements 
for  publicity,  the  completion  of  the  petition,  the  trans- 
mission of  measures  to  the  legislature,  the  provision 
for  competing  bills,  and  the  reference  of  initiative  and 
of  conflicting  measures. 
Publicity 

Publicity  is  secured  through  the  publication  of  the 
text  of  initiative  measures  and  the  distribution  of  ar- 
guments for  and  against  proposed  bills. 

Publication  of  tc.vt  of  measure.     Most  of  the  states 
require  the  publication"  of  the'  full  text  of  initiative 
and  referendum  measures. 
Compare  the  provisions  for  Mont.,  Nov.,  Okla.,  and  Ore. 

Distribution  of  arguments.  A  number  of  states 
also  make  provision  for  the  distribution  of  arguments. 

For  elaborate  provisions  for  the  distribution  of  arguments 
for  and  against  proposed  measures,  see  Mont.  Rev.  Codes, 
1907,  vol.  1,  part  iii.,  title  1,  c.  2,  art.  x.,  sees.  106-115  (Laws, 
1907,  c.  62);  Okla.  Gen.  Stats.,  1908,  c.  36  (Laws,  1907,  c.  44); 
and  Ore.  Laws,  1907,  c.  226. 

Completion  of  petition 

The  percentage  of  voters  required  to  sign  petitions, 
the  basis  of  the  percentage,  the  verification  of  signa- 
tures, and  the  method  of  filing  petitions,  vary  consid- 
erably with  the  different  states. 

Percentage  of  voters.  The  percentage  ranges  from 
5%  to  15%. 

The  percentages  for  the  different  states  are  as  follows:  8 
per  cent  for  Ark.,  Mo.,  Mont.,  Okla.,  and  Ore.;  5  per  cent  for 


THE  INITIATIVE  AXD  REFERENDUM  39 

S.  D..  and  10  per  cent  for  Nev.  In  Mo.  8  per  cent  of  the  legal 
votes  in  each  of  at  least  two-thirds  of  the  congressional  dis- 
tricts is  required;  and  in  Mont.,  8  per  cent  in  each  of  two- 
fifths  of  the  whole  number  of  counties  of  the  state. 

Oklahoma  requires  15  per  cent  to  propose  constitutional 
amendments.  Instead  of  requiring  a  certain  percentage,  Me. 
requires  a  fixed  number  of  12,000  signatures  for  initiative 
measures. 

Basis  ?>/  percentage.  The  percentage  required  is 
uniformly  based  upon  the  vote  cast  at  the  last  pre- 
ceding general  election. 

In  Ark.,  Mont.,  and  S.  D.,  the  per  cent  is  based  on  the  vote 
for  governor;  in  Ore.,  Mo.,  and  Nev.,  on  the  vote  for  justice 
of  the  supreme  court:  and  in  Okla.,  on  the  vote  for  the  state 
office  receiving  the  highest  number  of  votes. 

Verification  of  signatures.  The  methods  for  veri- 
fying signatures  are  definitely  prescribed  in  the  laws 
enacted  to  facilitate  the  operation  of  the  several 
amendments. 

See  Mo.  Laws,  1909,  pp.  554-558;  Mont.  Rev.  Codes,  1907, 
pp.  27-33;  Okla.  Gen.  Stats.  1908,  c.  36  (Laws,  1907-8.  c.  44); 
Ore.,  Laws,  1907,  c.  226;  and  S.  D.  Pol.  Code,  1908,  pp.  8-10 
(Laws,  1907,  c.  62). 

Filing.  Provision  is  generally  made  that  initiative 
petitions  be  filed  with  the  secretary  of  state.  The 
time  for  filing  varies  according  to  whether  the  pe- 
tition is  to  be  presented  to  the  legislature,  or  is  to  be 
voted  upon  by  the  people  without  legislative  considera- 
tion. 

Time.  The  time  for  filing  is  not  less  than  four  months  be- 
fore the  election  in  Ark.,  Mo.,  Mont.,  and  Ore.;  not  less  than 
thirty  days  before  any  regular  session  in  Nev. ;  and  at  least 
thirty  days  before  the  close  of  the  session  in  Me. 

Transmission  of  measures  to  legislature 

The  requirement  that  all  proposed  measures  be 
transmitted  to  the  legislature  gives  opportunity  for 


40  THE  INITIATIVE  AND  KEFERENDUM 

public   hearings,   for  testimony,   for  debate,  and   for 
deliberative  consideration. 

Compare  the  provisions  of  Me.  (Amend.  1908),  Resolves 
1907,  c.  121,  and  of  Nev.  (Proposed  Const.  Amend.)  Stats. 
1908-9,  pp.  347-349. 

Precedence  of  initiative  measures.  Provision  is 
sometimes  made  that  initiative  measures  tafce  preced- 
ence over  all  other  measures  in  the'  legislature  except 
appropriation  bills. 

See  the  proposed  amendment  for  Nev. 

Limitations  on  legislative  action.  The  provision 
that  the  legislature  shall  enact  the  measure  submitted 
is  a  provision  found  in  only  one  of  the  states. 

S.  D.  Const.  (Amend.  1898),  art.  3,  sec.  1. 
The  proposed  Nevada  amendment  requires  that  the  legisla- 
ture enact  or  reject  the  initiative  measure  within  forty  days. 

Provision  for  competing  bills 

An  important  feature  in  several  state's  is  the  pro- 
vision that  the1  legislature  may  submit  a  competing 
bill  if  it  disapproves  of  the  initiative  measure.  This 
affords  opportunity  for  deliberative  consideration  of 
conflicting  measures,  and  gives  the  people  a  choice 
between  the  initiated  bill  and  one  submitted  by  the 
legislature. 

This  is  provided  for  in  Me.  and  in  the  proposed  Nev.  amend- 
ment. 

Reference  of  initative  measures  and  of  compet- 
ing bills 
Competing  bills  are  to  be  submitted  with  initiative 

measures  so  that  the  electors    may    choose    between 

them  or  reject  both. 

See  Me.  (Amend.  1908),  Resolves,  1907,  c.  121,  and  Nev. 
(Proposed  Const.  Amend.)  Stats.  1908-9,  pp.  347-9. 


THE  INITIATIVE  AND  REFERENDUM  41 


IV.      PROCEDURE    FOR   REFERENCE    OF    MEASURES 

Measures  may  be  referred  either  by  petition  or  by 
legislative  action. 
Reference  by  petition 

The  requirements  for  reference  by  petition  vary 
both  as  to  the  percentage  of  voters  required  and  the 
manner  of  filing  petitions. 

Percentage  of  voters.  The  required  percentage 
ranges  from  5%  to  10%. 

The  percentages  are  5  per  cent  for  Ark.,  Mo.,  Mont.,  Okla., 
Ore.,  and  8.  D.,  while  Nev.  requires  10  per  cent/  The  re- 
quirements for  two-thirds  of  the  congressional  districts  in 
Mo.,  and  for  two-fifths  of  the  counties  in  Mont,  holds  for  ref- 
erendum as  well  as  for  initiative  petitions.  Me.  requires  a 
fixed  number  of  10,000  signatures. 

Mont,  has  a  provision  that  any  measure  referred  to  the  peo- 
ple is  to  remain  in  full  force  unless  the  petition  is  signed  by 
15  per  cent  of  the  legal  voters  of  a  majority  of  the  whole 
number  of  counties  of  the  state,  in  which  case  the  law  re- 
mains inoperative  until  it  is  passed  upon  at  an  election  and 
the  result  is  officially  determined. 

Basis  of  percentage.  The  basis  of  the  required 
percentage  is  the  same  as  for  initiative  petitions. 

Filing.  Petitions  are  to  be  filed  with  the  secretary 
of  state  within  a  specified  time. 

Time.  The  time  for  filing  is  not  less  than  ninety  days  after 
the  legislative  session  in  Ark.,  Ore.,  Okla.,  Mo.,  Me.,  and 
S.  D. ;  not  later  than  six  months  after  the  session  in  Mont,  i 
and  not  less  than  four  months  before  the  general  election  in 
Nev. 

Reference  by  legislative  action 

Legislatures  are  expressly  authorized  to  enact  meas- 
ures conditioned  upon  their  approval  by  the  people, 
on  a  referendum  vote. 

Compare  the  constitutional  provisions  of  Ark.,  Mo.,  Mont.f 
Okla.,  and  Ore. 


4'2  THE  INITIATIVE  AND  REFERENDUM 

Duty  of  officials 

In  submitting  initiative  and  referendum  petitions  to 

a  vote  of  the  people,  the  secretary  of  state  and  all 

other  officers  are  to  be  guided  by  the  general  laws 

until  legislation  is  especially  provided. 

Compare  the  provisions  of  Ark.,  Me.,  Mo.,  Mont.,  and  Ore. 

V.    ENACTMENT     OF     REFERRED  MEASURES 

Elections  for  submission  of  measures 

Measures  may  be  referred  for  enactment  or  rejec- 
tion at  general  or  at  special  elections. 

General  elections.  The  S.  D.  statute  provides  for  the  sub- 
mission of  measures  at  general  elections  only. 

Special  elections.  Provision  is  made  for  special  elections  to 
be  ordered  by  the  legislature  in  Ark.,  Mo.,  Mont.,  and  Ore.; 
by  the  legislature  or  the  governor  in  Okla.  and  Me.  Under 
the  Me.  provision  the  governor  must  order  a  special  election, 
if  so  requested  in  the  petition. 

Veto  power 

The  veto  power  of  the  governor  doe's  not  extend  to 
measures  referred  to  the  people. 

See  Ark.,  Me.,  Mo.,  Mont.,  Okla.,  Ore.  and  S.  D. 

The  Me.  amendment  requires  that  if  any  measure  initiated  by 
the  people  and  passed  by  the  legislature  without  change,  is 
vetoed  by  the  governor,  and  if  his  veto  is  sustained  by  the 
legislature,  the  measure  must  be  referred  to  the  people  at  the 
next  general  election. 

When  operative 

The  amendments  of  the  several  states  generally 
provide  that  any  measure  referred  to  a  vote  of  the  peo- 
ple is  to  become  a  law  and  be  in  force  from  the  date1 
of  the  official  declaration  that  it  has  been  approved  by 
a  majority  of  the  votes  cast  thereon. 


THE  INITIATIVE  AND  REFERENDUM  43 

See  Ark.,  Mo.,  Mont.,  Nev.,  Ore.,  and  S.  D.  (statute). 

In  Okla.  initiative  measures  must  be  approved  by  a  ma- 
jority of  the  votes  cast  at  the  election. 

In  Me.  and  Nev.  provision  is  made  that  initiative  measures 
enacted  by  the  legislature  without  change,  are  not  to  be  re- 
ferred unless  a  referendum  vote  is  demanded.  In  Me.  when 
initiative  and  competing  bills  are  submitted  at  the  same  elec- 
tion and  neither  receives  a  majority  of  the  votes  given  for  or 
against  both,  the  one  receiving  the  most  votes  is  to  be  resub- 
mitted  by  itself;  but  no  measure  is  to  be  resubmitted  unless 
it  received  more  than  one-third  of  the  votes  given  for  and 
against  both. 

Under  the  Nev.  provision,  if  conflicting  measures  submitted 
at  the  same  election  are  both  approved  by  a  majority  severally 
cast  for  and  against  each,  the  one  receiving  the  highest  num- 
ber of  affirmative  votes  becomes  a  law  as  to  all  conflicting 
provisions. 

VI.    PENALTIES 

The  laws  enacted  to  facilitate  the  operation  of  the 
direct  legislation  amendments  provide  penalties  for 
the  unlawful  signing  of  petitions. 

In  Me.,  Mont.,  Okla.,  Ore.,  and  S.  D.,  the  unlawful  signing 
of  initiative  or  referendum  petitions  is  punishable  by  fine,  or 
by  imprisonment,  or  both,  in  the  discretion  of  the  court.  In 
S.  D.  Comp.  Laws,  1908,  vol.  1,  Pol.  Code,  sees.  21-28  (Laws, 
1899,  c.  93)  the  fine  is  not  to  exceed  $500.00  nor  the  imprison- 
ment five  years.  In  Mo.  (Laws,  1909,  pp.  554-8),  Mont. 
(Laws,  1907,  c.  62),  Okla.  (Laws,  1907-8,  c.  44),  and  Ore. 
(Laws,  1907,  c.  226)  the  fine  is  fixed  at  the  same  limit  and  the 
imprisonment  is  not  to  exceed  two  years. 


WISCONSIN    LIBRARY   COMMISSION 

COMPARATIVE    LEGISLATION    BULLETINS 

No.     1.  Railway  Coemployment. 

No.     2.  Lobbying. 

No.     3.  Corrupt   Practices   at  Elections:     Contributions  and 

Expenditures.     (Out  of  print) 

No.     4.  Exemption  of  Wages. 

No.     5.  Municipal  Electric  Lighting.     (Out  of  print) 

Xo.     6.  Trust  Company  Reserves.     (Out  of  print) 

No.     7.  Taxation  of  Trust  Companies.     (Out  of  print) 

No.     8.  Municipal  Gas  Lighting.     (Out  of  print) 

No.     9.  Boycotting.     (Out  of  print) 

No.  10.  Blacklisting.     (Out   of  print) 

No.  11.  The  Initiative  and  Referendum:     State  Legislation. 

(Revised   Edition) 

No.  12.  The  Recall. 

No.  13.  Primary  Elections.     The  Test  of  Party  Affiliation. 

No.  14.  Proportional  Representation. 

No.  15.  Juvenile  Courts. 

'•.  Telephones.     Interchange  of  Service. 

No.  17.  Mortgage  Taxation. 

No.  18.  Municipal  Home  Rule  Charters. 

No.  19.  Tenement  House  Legislation.     State  and  Local. 

No.  20.  Accident  Insurance  for  Workingmen. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


A     000  949  852     8 


